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"Fiddlesticks!" Federal Judge dismisses case against FEC

by Janet McMahon

(Sunday, December 26, 2010)

"The decision, of course, left AIPAC officials smiling broadly. Indeed, although not a party in the case before the court, AIPAC filed a friend of the court brief which suggested the precise course Breyer's decision cited. Thomas G. Hungar, an attorney for AIPAC, said the high court "did exactly what we asked." Under the proposed changes in FEC operations, AIPAC would "clearly qualify" as a membership group exempt from public disclosures of financial operations."

In his opinion, Judge Leon seemed exasperated that the seven men who brought the lawsuit against the Federal Election Commission (FEC) had not packed up their bags and gone home long ago, instead of pursuing their case all the way to the Supreme Court. "Unfortunately, this appellate odyssey had only just begun!" he wrote in describing a 1992 challenge to the FEC's ruling that AIPAC was not a political committee—and hence not required to reveal its membership, funding sources and expenditures.

"The FEC has sole jurisdiction to civilly enforce the Federal Election Campaign Act of 1971," Judge Leon noted, the purpose of which is "to limit spending in federal election campaigns and to eliminate the actual or perceived pernicious influence over candidates for elective office that wealthy individuals or corporations could achieve by financing the 'political warchests' of those candidates."

The FEC maintained that AIPAC is a "membership organization" rather than a political committee. Coincidentally, the above act specifically exempts "any communications by any membership organization…to its members…if such membership organization…is not organized primarily for the purpose of influencing the nomination for election, or election, of any individual to federal office" (the "major purpose" requirement).

The Supreme Court heard the case on Jan. 14, 1998, and issued its ruling, written by Justice Stephen Breyer, on June 1, 1998. As former Rep. Paul Findley described it in the July/August 1998 issue of the Washington Report:

Breyer's decision avoided the [political committee] definition issue because FEC was "currently considering a new rule that could make the decision irrelevant to AIPAC's status." Speculating that a proposed rule change by the FEC would view most AIPAC expenditures as "membership communications," Breyer's decision concluded that, if approved, the proposal would exempt AIPAC from the campaign law and the controversy over FEC's "major purpose" test would no longer have importance.

Under normal circumstances, the court would be expected to rule that, under present law and existing FEC rules, the "major purpose" test is invalid. Therefore, following the normal logic of judicial decision-making, until such time as the law and/or rules are changed, AIPAC must make the required public disclosures. Instead, the court simply told the FEC how to duck the issue.…

The decision, of course, left AIPAC officials smiling broadly. Indeed, although not a party in the case before the court, AIPAC filed a friend of the court brief which suggested the precise course Breyer's decision cited. Thomas G. Hungar, an attorney for AIPAC, said the high court "did exactly what we asked." Under the proposed changes in FEC operations, AIPAC would "clearly qualify" as a membership group exempt from public disclosures of financial operations.

The Supreme Court sent the case back down to the lower court, which then sent it back to the FEC, which proceeded to adopt new membership rules. As Judge Leon writes in his opinion, "The FEC found that 'the issue of AIPAC's political committee status during the period covered by the complaint…has, as anticipated by the U.S. Supreme Court, become effectively moot" [italics added].

Toward the end of his 25-page ruling, Judge Leon writes, "the plaintiffs argue that the combination of communications urging AIPAC members to support unidentified candidates with 'Campaign Update' reports that include information identifying which candidates rate best on issues relevant to AIPAC [that would be Israel] are, in effect, express advocacy. Fiddlesticks!"

We're willing to bet that, were the judge to avail himself of the opportunity to peruse the FEC reports filed by the nearly 30 pro-Israel PACs active in the 2010 election, he'd be hard put to explain how they magically seem to give to the exact same candidates. Fiddlesticks, indeed.

"

From Pro-Israel PACs to Pro-Israel Foreign Nationals?

Barely six weeks after Judge Richard J. Leon dismissed Akins vs. FEC, the Federal Election Commission was sued by Canadian Benjamin Bluman and Canadian-Israeli Dr. Asenath Steiman. Both foreigners live in New York City, where Bluman is an attorney who will be sworn into the New York Bar on Nov. 22, 2010 “and intends thereafter to join the American Bar Association,” and Steiman is a medical resident at Beth Israel Medical Center and a member of the American Medical Association. Bluman currently has non-immigrant TN status, which is good for three years but can be renewed indefinitely. Steiman is in the U.S. on non-immigrant J-I status, also good for three years but subject to extension to a maximum of seven years.

The lawsuits describe both plaintiffs as “politically active,” Bluman’s causes being “protecting the environment, recognizing same-sex marriage, and ensuring that ‘net-neutrality’ is enshrined into law.” Steiman, who was a member of the Conservative Party of Canada, “is particularly passionate about preventing a government-takover of the health-care system in the United States. She also strongly supports tax reductions and policies that encourage entrepreneurship by increasing economic liberty.” No mention is made of her position on U.S. policy toward Israel, but one rather doubts that an Israeli citizen would be indifferent to that.

Bluman and Steiman desire to “express [their] views…by contributing money to candidates for political office and by independently advocating for such candidates.” Both also expect that “over the coming years, while [they reside] in the United States, [they] will want to make…contributions and expenditures in support of other candidates for local, state and federal office.” However, the Alien Gag Law currently prevents any foreign national other than a permanent resident from making contributions to candidates or to political party committees, or from making any independent expenditure in connection with a local, state or federal election.

Bluman and Steiman argue that the Alien Gag Law violates their rights to free speech under the First Amendment to the (U.S.) Constitution.

One liberal and one conservative? From our friendly neighbor to the north? What could be the harm in that? A final question: How many Israeli citizens currently reside in the U.S.?